GDPR Compliance

Good news: we've enhanced the HubSpot platform to enable easier compliance with GDPR

What is the GDPR anyway?

The GDPR (General Data Protection Regulation) is an EU Regulation that significantly enhances the protection of the personal data of EU citizens and increases the obligations on organisations who collect or process personal data. The regulation builds on many of the 1995 Directive’s requirements for data privacy and security, but includes several new provisions to bolster the rights of data subjects and add harsher penalties for violations.

What was the story before the GDPR?

You're likely hearing a lot about the GDPR, but did you know we've had data protection legislation in the EU for quite a while already? Although the 1995 EU Data Protection Directive will be replaced by the GPDR next May, the Directive sets out the eight data protection principles which have been governing the treatment of personal data by organisations for over two decades! Since the GDPR builds on and enhances these principles, we recommend you familiarise yourself with the current laws before you dive into the changes under the GDPR.

Does the GDPR apply to me?

The GDPR applies to businesses that a) market their products to people in the EU or who b) monitor the behavior of people in the EU. In other words, even if you’re based outside of the EU but you control or process the data of EU citizens, the GDPR will apply to you.

Disclaimer: This website is neither a magnum opus on EU data privacy nor legal advice for your company to use in complying with EU data privacy laws like the GDPR. Instead, it provides background information to help you better understand how HubSpot has addressed some important legal points. This legal information is not the same as legal advice, where an attorney applies the law to your specific circumstances, so we insist that you consult an attorney if you’d like advice on your interpretation of this information or its accuracy. In a nutshell, you may not rely on this paper as legal advice, nor as a recommendation of any particular legal understanding.

The most important changes under the GDPR

Individual’s Rights

Internal Procedures

Supervisory Authorities

Scope, Accountability and Penalties

Individual’s Rights

Consent

The GDPR steps up the standard for disclosures when obtaining consent, as it needs to be “freely given, specific, informed and unambiguous,” with controllers using “clear and plain” legal language that is “clearly distinguishable from other matters”. Controllers will also be required to provide evidence that their processes are compliant and followed in each case.

Essentially, your customer cannot be forced into consent, or be unaware that they are consenting to processing of their personal data. They must also know exactly what they are consenting to and they must be informed in advance of their right to withdraw that consent. Obtaining consent requires a positive indication of agreement – it cannot be inferred from silence, pre-ticked boxes or inactivity. This means that informing the user during the opt in is becoming more important in the future.

New Rights for Individuals

The regulation also builds in two new rights for data subjects: a "right to be forgotten" that requires controllers to alert downstream recipients of deletion requests and a "right to data portability" that allows data subjects to demand a copy of their data in a common format. These two rights will now make it easier for users to request that any information stored should be deleted or that information that has been collected should be shared with them.

Access Requests

Data subjects always had a right to request access to their data. But the GDPR enhances these rights. In most cases, you will not be able to charge for processing an access request, unless you can demonstrate that the cost will be excessive. The timescale for processing an access request will also drop to a 30 day period (but this can be extended to 60 days in some circumstances. In certain cases, organisations may refuse to grant an access request, for example where the request is deemed manifestly unfounded or excessive. However, organisations will need to have clear refusal policies and procedures in place, and demonstrate why the request meets these criteria.

Internal Procedures

Privacy by Design and DPIA

There are several new principles for entities that handle personal data, including a requirement to build in data privacy "by design" when developing new systems and an obligation to perform a Data Privacy Impact Assessment (DPIA) when processing using "new technologies" or in risky ways. A DPIA is the process of systematically considering the potential impact that a project or initiative might have on the privacy of individuals so that potential privacy issues can be identified before they arise, giving the organisation time to come up with a way to mitigate them before the project is underway.

Data Privacy Officer

On the security side, the GDPR will require many businesses to have a Data Privacy Officer (DPO) to help oversee their compliance efforts. Organisations requiring DPOs include public authorities, organisations whose activities involve the regular and systematic monitoring of data subjects on a large scale, or organisations who process what is currently known as sensitive personal data on a large scale.

Contracts & Privacy Documentation

Since the GDPR is all about transparency and fairness, Controllers and Processors will need to review their Privacy Notices, Privacy Statements and any internal data policies to ensure they meet the requirements under the GDPR. If a Controller engages third party vendors to process the personal data under their control, they will need to ensure their contracts with those Processors are updated to include the new, mandatory Processor provisions set out in Article 28 of the Regulation. Similarly, Processors should consider what changes they’ll need to make to their customer contracts to be GDPR ready by May 2018.

Supervisory Authorities

One-Stop Shop

One particular item in the GDPR should serve to make the lives of these DPOs easier: the GDPR’s new "one stop shop" provision, under which organizations with offices in multiple EU countries will have a "lead supervisory authority" to act as a central point of enforcement so they don’t struggle with inconsistent directions from multiple supervisory authorities.

Reporting Breaches

The GDPR contains a new requirement that controllers must notify their country’s supervisory authority of a personal data breach within 72 hours of learning of it, unless the data was anonymised or encrypted. In practice this will mean that most data breaches must be reported to the DPC. Breaches that are likely to bring harm to an individual – such as identity theft or breach of confidentiality – must also be reported to the individuals concerned.

Scope, Accountability and Penalties

Scope

The GDPR applies to non-EU businesses who market their products to people in the EU or who monitor the behavior of people in the EU. In other words, even if you’re based outside of the EU but you control or process the data of EU citizens, the GDPR will apply to you.

Accountability

This new concept will require Controllers and Processors to be able to demonstrate their compliance with the GDPR to their local supervisory authority. Processes should be recorded, implemented and reviewed on a regular basis. Staff should be trained and appropriate technical and organisational measures should be taken to ensure and demonstrate compliance.

Severe Penalties

The importance of the GDPR’s new provisions is underscored by the new penalties it imposes for violations. Depending on the type of violation in question, controllers and processors who mishandle personal data or otherwise violate data subjects’ rights could incur fines of up to €20 million or 4% of their global annual revenue (whichever is greater).

If you’re already a HubSpot customer or partner, please contact your account manager if you have any further questions, comments or suggestions.

Learn more about the GDPR compliance

What did the law say before the GDPR?

Although the DPD was replaced by the GPDR, it sets out the eight data protection principles which the GDPR builds on. These rules govern how organisations should treat personal data and are set out below:

Obtain and process the personal data fairly

Keep it only for one or more specified and lawful purposes

Process it only in ways compatible with the purposes for which it was given to you initially

Keep it safe and secure

Keep it accurate and up-to-date

Ensure that it is adequate, relevant and not excessive

Retain it no longer than is necessary for the specified purpose or purposes

Give a copy of his/her personal data to any individual, on request.

The DPD is a Directive, which is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to devise their own laws on how to reach these goals. In Ireland for example, the goals of the DPD were implemented through the Irish Data Protection Act, 1998.

A Regulation on the other hand, such as the GDPR, is a binding legislative act which applies in its entirety across the EU.

Will double-opt-in be mandatory?

For those unfamiliar with this term, "double-opt-in" is a 2-step mechanism where a person must confirm their email address after initially signing up. The GDPR does not require double-opt in (though certain countries may make this mandatory).

It’s worth noting that subscribers to the HubSpot service may already choose to enable double-opt-in functionality in their portals as an additional protective measure in proving they obtained the required consent.

How will Brexit impact the compliance for businesses based in the UK?

In June 2016, a majority of UK voters voted in favour of leaving the EU in the "Brexit" referendum. In March 2017, Theresa May gave notice to leave the EU under Art. 50 which triggered the commencement of the Brexit negotiations and meant that the UK will leave the EU on the sooner of withdrawal terms being agreed and the expiry of two years from giving notice, so by end March 2019. Therefore, it’s highly likely that the UK will still be part of the EU by the May 2018 GDPR deadline. This means if you’re based in the UK, you’ll need to work on your compliance as if Brexit never occurred.

The UK has drafted legislation to update the current Data Protection Act (DPD) in line with the GDPR. The bill is currently working its way through the UK Parliament.

If you’re based outside the UK but have vendors or affiliates in the UK with whom you share personal data, you’ll also need to keep an eye on developments in this area. When the UK leaves, cross-border data flows may not automatically have adequate safeguards and therefore additional projections may be required to protect data you transfer to the UK.

How will the Rights of Individuals be affected by the GDPR?

Individuals already have a lot of rights which protect their personal data under the 1995 Data Protection Directive, but the GDPR significantly strengthens these rights such that data subjects can now:

obtain details about how their data is processed by an organisation or business;

obtain copies of personal data that an organisation holds on them;

have incorrect or incomplete data corrected;

have their data erased by an organisation, where, for example, the organisation has no legitimate reason for retaining the data;

obtain their data from an organisation and to have that data transmitted to another organisation (Data Portability);

object to the processing of their data by an organisation in certain circumstances;

not to be subject to (with some exceptions) automated decision making, including profiling.

Will data now have to be stored in the EU?

No. There is no obligation under the GDPR for data to be stored in the EU and the rules regarding transfer of personal data outside the EU will not change. This means that, as long as the personal data is "adequately protected", data may be transferred abroad. For example, the EU has prepared a list of countries which they deem to provide an adequate standard of protection (known as "white listed countries"), so it is permissible to transfer data to those countries. Where a country is not on that EU list (for example, the USA), the controller must rely on use of approved contractual provisions (e.g. the Model Clauses or Corporate Binding Rules) or one of the other alternative measures, provided for in Law, such as the Privacy Shield certification.

Where can I find additional resources?

We've compiled a list of additional sites for more information around the new regulation down below. Please feel free to check them out.

Our GDPR Research

Our GDPR Glossary

The GPDR was written by lawyers, so it should come as no surprise that it’s got a good bit of legal jargon sprinkled in there. But don't worry, our glossary will hep you understand the most important definitions.

HubSpot's Update on planned Product Changes

Create a GDPR Strategy

In this lesson, you will learn what the GDPR is, the changes that will help protect personal data and the impact GDPR has on the world of inbound marketing and sales. You will explore the changes you may need to make for you and your business and how to best prepare for GDPR.